Stаte of Ohio, Plaintiff-Appellee, v. Farzad Akbari, Defendant-Appellant.
No. 13AP-319
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 24, 2013
[Cite as State v. Akbari, 2013-Ohio-5709.]
KLATT, P.J.
(C.P.C. No. 08CR-08-6223); (REGULAR CALENDAR)
Rendered on December 24, 2013
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Muchnicki & Bittner, LLP, and Brandon W. Puckett, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Defendant-appellant, Farzad Akbari, appeals from a judgment of the Franklin County Court of Common Pleas denying his postsentence motion to withdraw guilty plea. Because the trial court did not abuse its discretion, we affirm that judgment.
I. Factual and Procedural Background
{¶ 2} On August 26, 2008, a Franklin County Grand Jury indicted appellant with one count of possession of cоcaine, a fifth-degree felony. Appellant initially entered a not guilty plea to the charge. On June 3, 2009, appellant withdrew that plea and entered a guilty plea to one count of possession of coсaine. The trial court accepted appellant‘s
{¶ 3} On December 12, 2012, however, appеllant filed a motion to withdraw his guilty plea. Appellant alleged that he should be allowed to withdraw his plea pursuant to the United States Supreme Court‘s 2010 decision in Padilla v. Kentucky, 559 U.S. 356, (2010) and because his plea was not made knowingly, voluntarily, and intelligently because of mental health issues. Without a hearing, the trial court denied appellant‘s motion. In its decision, the trial court first noted that Padilla did not apply retroactively to appellant‘s case.1 Second, the trial court also found that manifest injustice did not support granting appellant‘s motion to withdraw. The trial court specifically rejected appellant‘s claim that he did not enter his plea knowingly, voluntarily, and intelligently because of mental health problems. The trial court noted thаt its plea colloquy with appellant established that his plea was made knowingly, voluntarily, and intelligently, and that his responses to the questioning indicated that he understood what he was doing at the plea hearing and that he understood the consequences of his plea. The trial court also pointed out that appellant‘s delay of 3 1/2 years in filing his motion strongly militated against granting the motion.
II. The Appeal
{¶ 4} Appellant appeals and assigns the following errors:
- The trial court erred by not vacating Defendant‘s guilty plеa to correct manifest injustice pursuant to
Ohio Criminal Rule 32.1 where defendant did not knowingly, intelligently, and voluntarily enter his plea because he suffered psychotic depression. - The trial court erred by finding Defendant‘s delay in submitting his Motion to Vаcate strongly militated against granting the motion.
{¶ 5} Appellant‘s two assignments of error both address the trial court‘s decision to deny his motion to withdraw.
{¶ 6}
{¶ 7} The decision whether to grant or deny a motion to withdraw is left to the discretion of the trial court. State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus; Chandler at ¶ 8. Therefore, this court‘s review of the trial court‘s denial of a post-sentence motion to withdraw a guilty plea is limited to a determination of whether the trial court abused its discretion. State v. Conteh, 10th Dist. No. 09AP-490, 2009-Ohio-6780, ¶ 16. Absent an abuse of discretion on the part of the trial court, its decisions concerning a post-sentence motion to withdraw guilty plea must be affirmed. State v. Xie, 62 Ohio St.3d 521, 527 (1992). Although an abuse of discretiоn is typically defined as an unreasonable, arbitrary, or unconscionable decision, State v. Beavers, 10th Dist. No. 11AP-1064, 2012-Ohio-3654, ¶ 8, we note that no court has the authority, within its discretion, to commit an error of law. State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
B. Appellant‘s First Assignment of Error—Was his Plea Entered Knowingly, Voluntarily and Intelligently?
{¶ 8} Appellant contends that he established a manifest injustice for the withdrawal of his guilty plea because his plea was not entered knowingly, voluntarily, and
{¶ 9} A guilty plea that is not entered knowingly, intelligently, or voluntarily, creates a manifest injustice that would entitle a defendant to withdraw a guilty plea. State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5, 9. To help ensure that guilty pleas are knowingly, intelligently, and voluntarily made,
{¶ 10} Appellant argues that his mental health issues caused him to not subjectively understand the effect of his guilty plea. Because this is a nonconstitutional element of the
{¶ 11} Appellant argues that the trial court should have questioned him about his mental health status after trial counsel mentioned appellant‘s mental health. We
{¶ 12} Beсause appellant entered his guilty plea knowingly, voluntarily, and intelligently, and with the full knowledge and understanding of the consequences of his plea, he has failed to establish that withdrawal of a guilty plea is necessary to correct manifest injustice. Franks at ¶ 18, citing State v. Honaker, 10th Dist. No. 04AP-146, 2004-Ohio-6256, ¶ 16. Accordingly, we overrule appellant‘s first assignment of error.
C. Appellant‘s Second Assignment of Error—Delay in Filing his Motion
{¶ 13} Appellant also contends that the trial court erred by finding that 3 1/2 years was an undue delay that militated against granting his motion. We disagree.
{¶ 14} As appellant concedes, an ” ‘undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motiоn under
{¶ 15} Appellant entered his guilty plea on June 3, 2009 and did not file his motion to withdraw until December 12, 2012, 3 1/2 years later. This is the delay the trial court considеred in its decision. Appellant argues that the delay in filing his motion should not start to run from the day he entered his plea because the “occurrence of the alleged cause for withdrawal” happened in March 2012 when he learned that he would be deported as a result of his plea. Therefore, he argues that the delay in filing his motion was only nine months. We disagree.
{¶ 16} On June 3, 2009, the day appellant entered his guilty plea, the trial court advisеd him that “because you are not a citizen of the United States, that there may be the consequence of your being deported, being excluded from admission to the U.S. or being denied naturalization as a citizen.” (Tr. 6.) Appellant answered that he understood that fact. Additionally, trial counsel noted at the plea hearing that appellant “obviously has worse potential consequences coming up. He‘s been here for the past 30 years with little or no record, and I think he is at this point just praying to stay.” (Tr. 9.) Appellant then received a “Notice to Appear” from the U.S. Department of Homeland Security dated June 4, 2009 which notified him that he was subject to removal from the country because of this conviction. The trial court did not err when it calculated appellant‘s delay in filing his motion based upon when appellant learned that deportation was a possible consequence of his guilty plea, and not when he subsequently learned that he would actually be deported. State v. Garcia, 10th Dist. No. 08AP-224, 2008-Ohio-6421, ¶ 15 (delay begins from time defendant learned of possible deportation consequence at plea hearing and after receiving notice of hearing from federal government); State v. Abukhalil, 8th Dist. No. 97129, 2012-Ohio-1639, ¶ 17-19, citing State v. Villafuerte, 8th Dist. No. 90367, 2008-Ohio-5587, ¶ 16 (delay runs from time defendant learns of deportation as a possible consequence); State v. Pineda, 8th Dist. No. 86116, 2005-Ohio-6386, ¶ 30 (delay runs from notice of deportation, not when actually deported). We overrule appellant‘s second assignment of error.
{¶ 17} The trial court did not abuse its discretion by denying appellant‘s motion to withdraw guilty plea. Accordingly, we overrule appellаnt‘s two assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and CONNOR, JJ., concur.